Today in History (1862) - The U.S. government forbids all Union army officers from returning fugitive slaves, thus effectively annulling the Fugitive Slave Law of 1850 and setting the stage for the Emancipation Proclamation. On the same day in 1865, the Confederate Congress voted to enlist 300,000 black troops, granting them freedom with the consent of their owners. Lee surrendered a few weeks later.

January 28, 2008

Paulsen Will Never Prevent an Abortion

by PG

Although I am sure Michael Stokes Paulsen is quite able in arguing the case for abortion prohibition in a more academic format, his Balkinization post about the Roe Holocaust* was disappointingly tiresome. Legal scholars who make such arguments seem to be either ignorant of or indifferent to the fact that Anglo-American law never treated abortion as a species of killing. Before Roe, as I have noted, abortion was classed in state statutes as a crime against morals and decency, along with fornication, adultery, prostitution, sodomy and bestiality. It was not put among the homicide crimes, and always was prosecuted and penalized differently than murder. This indicates a historic framing of abortion as a morally impermissible misuse of one's own body, rather than as a crime against the person of another.

Because contraception also was once among those morals crimes, I can see why the privacy reasoning of Griswold (contraception) seemed logical to extend to Roe (abortion), and has been extended to Lawrence (sodomy) as well. And this reasoning emphasizes a point that Paulsen and other abortion prohibitionists' rhetoric ignores: that abortion takes place in a woman's body. Instead, Paulsen says,

There is no denying that the human fetus is alive or that it is an independent life, having a separate biological existence and identity from the woman in whose womb the human fetus is developing. ... In addition, the human fetus often could not live on his or her own without the support of the mother's womb... Rather, most defenders of abortion ultimately rest their position on the moral judgment that unborn human life is, at some or all stages of gestation, simply not morally worthy of protection against private violence at the hands of someone inconvenienced to a greater or lesser degree by that human life. ... what the majority [in Roe did was] create out of whole cloth a super-protected constitutional right of some human beings to kill other human beings, for essentially whatever reasons they may have for doing so, including caprice, spite, convenience, or the child's gender, race, or other physical characteristic.

Yet if the fetus has such a wholly separate biological existence, why not just remove it and put it in the uterus of a woman who feels more hospitable to it? If it's merely "often" that a fetus can't live on its own, why aren't there hospital nurseries full of fetuses that are capable of living on their own? In actuality, of course, no fetus can live without an umbilical cord until its respiratory system has developed enough for it to breathe, and this doesn't occur even in the fastest developing fetus until the 21st week, which is halfway through the pregnancy, and well after 98% of abortions would have occurred (88.2% of abortions were conducted at or prior to 12 weeks, 10.4% from 13 to 20 weeks).

I am puzzled as to why some abortion prohibitionists reject accurate descriptions of fetal life, when such descriptions often are their best allies in reaching people's emotions. For a woman who is wavering on whether to have an abortion, an ultrasound that shows the fetus may cement her emotional attachment and cause her to decide to complete the pregnancy.**

This is portrayed well in the movie Juno, where a decidedly irreverent, irreligious, and seemingly insensitive teenager decides against abortion after getting to the clinic. The combination of information she receives from a classmate that the fetus already has fingernails, and the negative environment in the clinic (the simultaneously callous and over-informative receptionist, the drumming nails of the other people waiting) drive her to seek an adoption instead. I doubt a person like that would have her mind changed by obvious exaggerations regarding a fetus's ability to survive outside the womb. And if she believed them, she probably would have tried to have the baby extracted at her meeting with the adoptive parents, where she declares, "If I could just have the thing and give it to you now, I totally would, but I'm guessing it looks probably like a sea-monkey right now and we should let it get a little cuter."

The tactics that are actually useful for reducing the number of abortions, however, are inaccessible to Paulsen because he is so set on equating every woman considering an abortion with Hitler. As the conversion of Norma McCorvey -- the Roe of Rove v. Wade -- into an abortion prohibitionist (and Ron Paul supporter) demonstrates, an attitude of welcome is much more persuasive than condemnation. The title of the book announcing McCorvey's switch, Won by Love, essentially summarizes the story therein: she eventually felt exploited by the pro-choice movement, whereas the folks at Operation Rescue -- who moved their national headquarters next door to the clinic where she worked -- were friendly to her. If she has financial trouble, pro-life groups will call for donations.

In his post, Paulsen therefore fails both as a law professor and as an abortion-preventer. Perhaps these two aspects are incompatible: the legal argument must be in absolute terms for the heinous guilt of an aborting woman, while the social argument would have to recognize her humanity and claims to our sympathy even as it guides her to an alternative. In any case, I would recommend the post neither to convince a lawyer that abortion should be prohibited, nor to convince a woman not to have an abortion.

* Holocaust and genocide are weirdly inapt terms to use for the millions of fetuses killed through abortion, with their connotations of the killers' attempt to extinguish the existence of some group of Others. A women who kills the fetus she carries is almost by definition killing a fetus that if it were born, would be part of not only her general groups (race, nationality, etc.) but of her most intimate group, her family. If Paulsen is convinced that fetuses are people, the more appropriate analogy would be to the deaths that occurred in Communist China. This kind of genocide was motivated not by racial hatred, but more approximately by what those who do not conceive of pregnancy as significantly burdensome would call "convenience." It was inconvenient for Mao to feed all these people or to allow potential dissidents to live, so they died.

** I am very much in favor of ultrasounds being used for the purpose of fully informing pregnant women who are considering abortion. Someone who couldn't cope with the idea that she will be killing the blob on a screen has no business having an abortion. She'll probably repent of it once she finds out what a fetus looks like and join the abortion prohibition movement, on the belief that because she regrets her abortion, everyone must, and therefore she must save them from themselves. See Kennedy's majority opinion in Gonzales v. Carhart: "While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05–380, pp. 22–24. Severe depression and loss of esteem can follow."